ASST CIT 17(1), MUMBAI vs. DAWN INDIA, MUMBAI

O R D E R

PER AMARJIT SINGH, JM:

1 “On the facts and in the circumstances of the case and in Law, the Ld. CIT(A] has erred in directing to delete the penalty levied u/s 271(1)(c) of the Act in respect of the disallowances of Rs,1.56 Crores out of the amount of warehouse charges by invoking the provision of sec 40(a)(ia) of the Act -without A.Y. 2008-09 appreciating the fact that the said addition has been confirmed by the Ld. CIT(A) in the quantum appeal preferred by the assessee," 2/ On the facts and circumstance of the case and in law the learned CIT(A) has erred in directing to delete the penalty levied u/s 271 (l)(c) of the Act in respect of the disallowances of Rs. 1.56 Crores out of the amount of warehousing charges by invoking the provision of sec 40(a)(ia) of the Act. Without appreciating the fact, the Hon’ble Delhi High Court in the case of CIT vs Zoom Communication (P) Ltd, 327 1TR 510 and CIT vs, N.G Technologies Ltd. 57 taxmann.cm.389 has unambiguously held that if assessee makes a claim which is not only correct in law but is also wholly without any basis and explanation furnished by him for making such a claim is not found to be bona fide. Explanation 1 to section 271(l)(c) would done in to play and assessee will be liable to penalty." 3.. "The appellant prays that the order of the AO should be restored and order of the CIT(A] should be set aside." 4 The appellant craves leave to amend or alter any ground or add a new ground which may be necessary.”

3. The brief facts of the case, are that the assessee filed his return of income on 30.09.2008 declaring total income to the tune of Rs.66,28,970/-. The assessment was completed u/s 143(3) of the I.T. Act, 1961 on 20.12.2010, determining the total income to the tune of Rs.2,50,99,870/-, after making certain additions/disallowance which include (a) Disallowance u/s 40(a)(ia) of the Act in respect of Reimbursable Expenses/ (b) Disallowance u/s 14A of the Act of Rs.20,439/- on which penalty proceeding was initiated. Thereafter the assessee filed an appeal before the CIT(A) who confirmed the order of the AO order dated 20.03.2012. Thereafter, the assessee has filed an appeal before ITAT challenging the order of the CIT(A) which was pending at the time of initiating the proceeding u/s 271(1)(c) of the ITA. No. 4603/M/2016 A.Y. 2008-09